Joseph @ Jose Kallanickal House v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **TUESDAY, THE 4TH DAY OF JUNE 2013/14TH JYAISHTA 1935** ## **CRL.A.No. 603 of 2006 ( )** **----------------------------------SC 529/2004 of SESSIONS COURT,THODUPUZHA. CP 16/2003 of JUDICIAL FIRST CLASS MAGISTRATE COURT, KATTAPPANA.** **........** ## **APPELLANT(S)/ACCUSED 1 AND 5.:** **----------------------------------------------------------** **1. JOSEPH @ JOSE KALLANICKAL HOUSE, KALKOONTHAL VILLAGE EATTITHOPPUKARA.** **2. SAIJU, S/O.MATHEW, KADAVANKUNNEL HOUSE, KALKOONTHAL VILLAGE IDINJAMALA KARA.** **BY ADVS.SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN** ## **RESPONDENT(S)/COMPLAINANT.:** **------------------------------------------------------** **STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR SRI.V.S.SREEJITH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-06-2013, ALONG WITH CRA. 662 of 2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **P.BHAVADASAN, J.** **--------------------------------------Crl. Appeal Nos.603 & 662 OF 2006 --------------------------------------Dated this the 4[th] day of June, 2013.** ## **J U D G M E N T** The accused were prosecuted for the offences punishable under Sections 376 and 450 of Indian Penal Code and Section 3 (2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. On trial, they were acquitted of the charges under the provisions of the SC/ST (PA) Act. The 1[st] and 5[th] accused were found guilty of the offence under Section 376 IPC and were convicted and sentenced to suffer rigorous imprisonment for a period of seven years each. As far as accused Nos.2 to 4 are concerned, they were found guilty of both the offences under Sections 450 and 376 IPC and they were convicted and sentenced to suffer rigorous imprisonment for a period of seven years and five years for the respective offences. All the accused were sentenced to pay a fine of Rs.25,000/- each for the offence under Section 376 IPC. As far as accused Nos.2 **Crl.Appeal Nos.603 & 662/2006** **2** to 4 are concerned, substantive sentences were directed to run concurrently, and set off as per law was allowed as regards all the accused persons. 2. PW1 is the victim in this case. As per the prosecution allegation, some day in September 2002, PW1 had gone to the house of the 1[st] accused to borrow kerosene. The 1[st] accused went to the kitchen and brought kerosene and the same was handed over to PW1. Thereafter, it is alleged that he caught hold of the hand of the victim, took her inside the house and ravished her. Two weeks thereafter, according to prosecution, accused Nos.2 to 4, among whom accused Nos.2 and 4 are father and son, committed repeated acts of rape on the victim in her house. The victim then says that she had occasion to go to the house of the her sister who is married and while she was there, she happened to go to the house of the 5[th] accused for watching T.V and there she was ravished by him. As a result of these acts committed by various accused persons, she conceived. She had occasion to go to the hospital along with her sister. There she felt giddy and fell down and when the doctor examined her, it was **Crl.Appeal Nos.603 & 662/2006** **3** revealed that she was pregnant. Thereafter, Ext.P1 First Information Statement was laid by PW1. 3. PW12, Additional Sub Inspector, recorded Ext.P1 First Information Statement furnished by PW1 and registered a crime as per Ext.P1(a) First Information Report. PW13 took over the investigation on 05.04.2003. He questioned PW1 and had her examined by PW3 doctor and procured Ext.P4 certificate. He prepared scene mahazar from the place where the incident had taken place and seized the respective dress materials also. On surrender of the accused persons, he had them subjected to potency test and obtained Exts.P5 to P9 potency certificates. He recorded the statement of witnesses, completed the investigation and laid charge before the court. 4. The court before which charge was laid took cognizance of the offences and on finding that the offences are exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Thodupuzha. The said court, on receipt of records and on appearance of the accused, framed charges for the offences punishable under Sections 450 and 376 IPC and **Crl.Appeal Nos.603 & 662/2006** **4** Section 3(2)(v) of SC/ST (PA) Act. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore had PWs 1 to 13 examined and Exts.P1 to P43 marked. 5. After the close of the prosecution evidence, the accused were questioned under Section 313 Cr.P.C. They denied all the incriminating circumstances brought in evidence against them and maintained that they are innocent. The 1[st] accused submitted before court that it was with the intention of extracting money from him that he has been implicated. The 2[nd] accused had taken a stand that at the relevant time he was suffering from Malaria and he had been taking rest. The 4[th] accused stated that two months prior to the filing of the complaint, father of the victim had picked up a quarrel with him and in order to wreak vengeance, he has been falsely implicated. As far as the 5[th] accused is concerned, he also denied the incident and pointed out that at the relevant time he was preparing to go to the middle east and that the uncle of PW1 knew that he had money with him. He would say that CW6 used to call his father telling that if money is given, he will be exonerated otherwise he will continue **Crl.Appeal Nos.603 & 662/2006** **5** to be an accused. They refused to pay any amount. 6. On finding that the accused could not be acquitted under Section 232 Cr.P.C, they were asked to enter on their defence. The defence had DWs 1 to 4 examined. Exts.X1 and X2 were marked as court exhibits. 7. On appreciation of the evidence in the case, the court below came to the conclusion that the evidence of PW1 is sufficient to come to a conclusion that offences have been made out. The court below also found that her evidence is cogent, convincing and acceptable. On the basis of that finding, conviction and sentence followed. The said conviction and sentence are assailed in these appeals. 8. Learned counsel appearing for the appellants contended that the court below had entered findings on the basis of conjectures and surmises and not on the basis of legal evidence adduced in the case. Learned counsel stated that he had no quarrel with the proposition that if the evidence of the prosecutrix is found to be of a high standard and beyond doubt, conviction can certainly be based on the same and the court need not look **Crl.Appeal Nos.603 & 662/2006** **6** for corroboration. However, if it is shown that the prosecution could have adduced other items of evidence in support of the evidence furnished by PW1 and they refrained from doing so, then the case stand on a different footing. In the case on hand, it is contended that when the evidence of PW1 is analysed and viewed in the light of other items of evidence, it can be seen that it is not above board and it is open to serious doubt. Merely because she is literate, it may not be possible to show as to why she should falsely implicate the accused and it does not follow that her evidence is to be accepted in toto. It is not for the accused persons to show as to why they were arrayed as accused. It is also contended by the learned counsel that it is true that two of the accused persons have taken a plea of alibi but that has not been accepted by the court below. Learned counsel for the appellant pointed out that the question of defence plea arises only when it is proved that the prosecution has established its case beyond reasonable doubt. The prosecution cannot rely only on the weaknesses of the defence case and it cannot be said that the prosecution has proved its case. **Crl.Appeal Nos.603 & 662/2006** **7** 9. The evidence of PW1 and the narration given in Ext.P1, according to the learned counsel for the appellant, shows that first of the incidents i.e. the act committed by the 1[st] accused was in September 2002. However, at the time of evidence, PW13, investigating officer, is very definite and categoric that the first and the only act alleged to have been committed by the 1[st] accused is on 04.05.2002 and it is also pointed out that the charge is on that basis. PW1 had no case that she was ravished by 1[st] accused in the month of May 2002. Attention was also drawn to the fact that nowhere in Ext.P1 it is stated that any of the accused for that matter had threatened the victim with dire consequences if she revealed the incident to anybody. But, at the time of evidence, PW1 comes forward with such a claim. That, according to the learned counsel, is a development and embellishment to cover up the weaknesses of the prosecution case. 10. Apart from the above contentions, learned counsel appearing for the appellants also pointed out that a reading of the evidence of PW1 would show that when it was revealed that **Crl.Appeal Nos.603 & 662/2006** **8** she was pregnant, she had narrated the incident to her father, sister and also to a panchayath member by name Indira. The evidence of PW1, according to the learned counsel, also shows that a community leader named Peethambaran, who is shown as CW6, when came to know about the incident had issued notice to the accused to appear before him and he was fully aware of the facts. It was he who ultimately asked PW1 to file a complaint before the police. For the reasons best known to the prosecution, none of these witnesses have been examined and no reasons are given by the prosecution for the same. It is not as if, according to the learned counsel, that no other evidence was possible in the case and one has to solely rely on the testimony of PW1. The statements of PW1 would show that at least she had narrated the acts done on her to several persons and there is no reason as to why they should have been kept away from the court. That necessarily should lead to an adverse inference being drawn against the prosecution. 11. Learned counsel appearing for the appellants, referring to Ext.P4 certificate prepared by PW3 doctor who had examined **Crl.Appeal Nos.603 & 662/2006** **9** the victim, contended that there is no mention of rape in Ext.P4. That shows that even at the time when PW1 was examined by PW3, there was no allegation of rape. Learned counsel also pointed out that, according to PW1, her mother takes pills for her mental illness both in the morning and evening and soon after taking pills, she becomes drowsy. Referring to the evidence of PW1, it was pointed out that in the evening, the medicine is taken after dinner which shows that at the time when accused Nos.2 to 4 are alleged to have committed the acts i.e. between 7.00 – 7.30 p.m, the mother must have been alert and would not have been under the influence of medicine. That would belie the version of the prosecution that PW1 was repeatedly raped by accused Nos.2 to 4 on several occasions. The above aspects, according to the learned counsel, have not been considered by the court below and the court below was carried away by the social background from which the victim hailed and the pitiful plight she was placed at the relevant time. While the learned counsel did not dispute that these are valid considerations, it was pointed out by him that they are not substitutes for proof in **Crl.Appeal Nos.603 & 662/2006** **10** accordance with law. Learned counsel also pointed out that if the evidence is critically analysed, it can be seen that the prosecution has failed to prove the case against the accused. 12. Per contra, learned Public Prosecutor, relying mainly on paragraphs 29 to 37 of the judgment of the court below, contended that the court below has considered the evidence of PW1 in considerable detail and has found the same to be acceptable. Each of the contentions which have been met by the court below found to be untenable. The court below has also relied on the decision in _**Sree Narayan Saha and another** vs._ _**State of Thripura**_ ((2004) 7 SCC 775)) and found that since the accused were unable to show that there was any oblique motive on the part of the victim to falsely implicate the accused, the finding that the offence has been committed is fully justified. There is no evidence to show, according to the learned Public Prosecutor, that the victim was of a loose character, and it is significant to notice, according to him, that the plea of alibi put forward by two of the accused persons was not established. According to the learned Public Prosecutor, even though PW1 was **Crl.Appeal Nos.603 & 662/2006** **11** subjected to cross examination at length, no infirmities could be brought out in her evidence and her evidence stands scrutiny. It is pointed out that the status of the victim is that of an injured witness and therefore, her testimony is entitled to considerable weight and she cannot be treated as an accomplice. Harping on the point that there is no reason established by the accused persons to show that there was any oblique motive on the part of PW1 to falsely implicate the accused and also the fact that PW1 is an innocent girl who was not aware of what was happening to her, it was contended that no grounds are made to interfere with the findings of the court below. 13. The parameters of appreciation of evidence in a case of rape are well settled. If the evidence of the prosecutrix is found to be of a sterling character which inspires confidence in the mind of court and stands scrutiny, then it is not necessary for the court to look for corroboration, even otherwise corroboration is only a rule of prudence. It is also well settled that a victim of rape undergoes both physical and mental agony and therefore, the evidence of such a witness will have to be appreciated under such **Crl.Appeal Nos.603 & 662/2006** **12** circumstances. Of course, normally, a woman would not take upon herself such a humiliating act with a sole intention of wreaking vengeance. That aspect has also to be kept in mind. But, if, on the other hand, it is found that the evidence of the prosecutrix is open to doubt, then it is a different scenario. 14. The witnesses are categorised into three; i) wholly reliable ii) wholly unreliable and iii) partially reliable and partially unreliable. In the case of wholly reliable witness, the court need not look for corroboration at all. In the case of wholly unreliable witness also, the court need not look for corroboration. But, in the case of witnesses who fall under the 3[rd] category, it may be necessary for the court to ensure that the prosecution has established its case and to look for further evidence in the nature of corroborative evidence. Bearing the above principles in mind, an attempt shall now be made to analyse the evidence in this case. 15. The evidence as regards the incidents remain confined to the testimony of PW1. In Ext.P1 First Information Statement which is given by PW1 on 04.04.2003, significantly enough, there **Crl.Appeal Nos.603 & 662/2006** **13** is no mention that she was ever threatened by anyone of the accused persons. At the time of evidence, she comes forward with a claim that she was intimidated by the accused and that kept her silent. One may pardon the infirmity in this regard and can go to the extent of saying that considering the background from which PW1 hails and the social status she enjoyed, it may not be of much consequence. PW1 in no less terms says that when it was revealed that she was pregnant she had conveyed the information of the acts undergone by her to her father, sister and one Panchayath member named Indira. Thus, it is clear that there were other persons who were in the know of things. Of course, their evidence would be only hearsay evidence. But, strangely enough, none of them were examined by the prosecution. The father of the victim was examined as defence witness namely, DW2. But, the defence gave him up in the middle of his examination and even more strange is the fact that there was no attempt to cross examine him from the side of the prosecution. It would appear that the prosecution missed a golden opportunity. **Crl.Appeal Nos.603 & 662/2006** **14** 16. On a reading of the evidence of PW1, it is seen that CW6, who is shown as General Secretary of Dalit Federation had intervened in the matter. According to PW1, he had occasion to send notices to the accused to appear before him and when they did not do so, he adviced PW1 and her father to lay complaint before the Police. It was thereafter that the complaint was laid. Even assuming that the value of the evidence of CW6 is limited, one fails to understand why the prosecution was shy to examine him. If he had been examined, at least some strength would have been provided to the testimony of PW1 which stands in isolation now. Thus, non examination of the father, sister, Panchayath member and CW6 who could have contributed to the issue in dispute cannot be easily brushed aside or overlooked. 17. One cannot omit to note that PW3 doctor, who had examined PW1 and issued Ext.P4 certificate, at the time of evidence, stated that PW1 was brought to him as a victim of rape. But, strangely enough, in Ext.P4, there is no history as such mentioned either by the victim or by the doctor who examined her. Therefore, Ext.P4 is also no help to the **Crl.Appeal Nos.603 & 662/2006** **15** prosecution. 18. It is true that in paragraphs 29 to 37 of the judgment of the court below, the court has considered the evidence of PW1 in considerable detail. The court below mainly based its conclusion on the fact that two of the accused who took the plea of alibi was unable to prove their claim and also the fact that since the accused were not able to show that there was any oblique motive or ill motive for the victim to implicate the accused, it would follow that the case set up by the prosecution has been proved. For the said purpose, the court below relied on the decision already referred to. 19. True, if the evidence of PW1 is found to be convincing, cogent and creditworthy and beyond reasonable doubt, the court need not look for any other items of evidence. It is here one has to recollect that the evidence of PW1 is to the effect that she was first ravished by the 1[st] accused in September 2002. This stand of PW1 is maintained by her at the time of giving Ext.P1 and at the time of giving evidence as PW1. One may refer to the evidence of PW13, the investigating officer. The investigating **Crl.Appeal Nos.603 & 662/2006** **16** officer points out that his investigation revealed that the act committed by the 1[st] accused was on 04.05.2002 and that is why he had filed the final report showing the date of assault by the 1[st] accused as 04.05.2002. Learned counsel for the appellant also brought to the notice of the court that the court charge framed is also to that effect. Thus the definite allegation which the 1[st] accused had to meet is that he had committed assault on 04.05.2002. But, PW1 has no such case either in evidence or in Ext.P1. Her definite case was that she was sexually assaulted in September 2002. These inconsistencies in the evidence cannot be easily overlooked. 20. In the above context, an attempt was made by the 1[st] accused to show that he was not at home on the alleged date. True, he might not have been successful in proving his plea of alibi. But, that does not relieve the burden of the prosecution to prove the case against the accused beyond reasonable doubt. At the risk of repetition, one may notice that PW1 has no case that she was ravished by 1[st] accused in May 2002. Therefore, the finding of the court below based on the failure of the 1[st] accused **Crl.Appeal Nos.603 & 662/2006** **17** to prove the plea of alibi cannot have legal basis. 21. True, one has to sympathise with the victim. But, one has to remember that it is long after the alleged incident that PW1 has come forward with an allegation in the form of Ext.P1. The offence of rape is one easy to allege but difficult to duly prove. As time passes, the court must look for more evidence in that regard. 22. It is not as if that the prosecution was unable to adduce evidence in support of its case. At least it could have attempted to show that information was conveyed by PW1 to other persons and had they spoken about it, that would have supported PW1's evidence. It is very very strange to note that even the father of the victim who ought to have concerned about her especially in view of the fact that her mother was mentally sick and was unable to take care of her was not examined by the prosecution. It is also strange to note that neither the father nor the sister, though it could be seen that her sister was married, had noticed the pregnancy of PW1. The explanation offered by the sister in this regard is not easy to swallow. She says that she thought **Crl.Appeal Nos.603 & 662/2006** **18** that the bulging of stomach was due to overeating. Whatever that be, there were other materials which the prosecution could have produced to strengthen the testimony given by PW1. 23. After having gone through the paragraphs of the judgment of the court below relied on by the learned Public Prosecutor namely, paragraphs 29 to 37, this Court finds it difficult to accept the findings of the court below. While some of the factors taken aid of by the court below are relevant consideration, one cannot omit to note various other aspects of the case. One has to remember that five persons are facing prosecution and their fate depends upon the testimony of PW1 and therefore, it has to be carefully scrutinised and ensured that it can be relied on. Even though the prosecution could have attempted at least to adduce further evidence in the case with regard to the incident spoken to by PW1, there was no attempt to do so and the prosecution remained satisfied with the solitary evidence of PW1. 24. True, PW1 was of tenderage. Though there is some dispute regarding the age of the victim, that is without merit in **Crl.Appeal Nos.603 & 662/2006** **19** the light of Ext.P17 certificate and the evidence of PW8 Headmaster who issued the said certificate. Ext.P17 shows the date of birth of the victim as 05.04.1987. 25. This Court is unable to accept the finding of the court below that the prosecution has established its case against the accused persons beyond reasonable doubt. At any rate, it could not be said that the evidence of PW1 is of such a high standard that it passes scrutiny and it is beyond reasonable doubt. If that be so, the benefit of doubt should go to the accused. In the result, these appeals are allowed and the conviction and sentence passed against the accused are set aside. The accused are found not guilty of the offences punishable under Sections 376 and 450 of Indian Penal Code and they stand acquitted of the charges levelled against them. Their bail bonds shall stand cancelled and they are set at liberty forthwith. If the fine amounts have already been paid, the same shall be refunded to them. ## **P.BHAVADASAN JUDGE** smp